The Supreme Court Steps Back From Tokenism Under a New Name

06.24.13 7:49 PM ET

It was 10 Junes ago that the Supreme Court decided on two cases against the University of Michigan’s admissions policies. Much of the media saw it as a day of victory, with the court ruling in favor of the university law school’s “holistic” approach to race in admissions. On the front page of The New York Times was a photo of the university’s president, Mary Sue Coleman, smiling broadly in front of the court. Especially emblematic was Justice Sandra Day O’Connor’s famous statement that affirmative action would be necessary for at least another 25 years.

That June day, though, planted the seeds for what has happened today, with the court requiring that the Fifth Circuit consider Abigail Fisher’s case against the University of Texas. In 2003 the supremes banned Michigan’s undergraduate-admissions policy, which had been a good old-fashioned quota system where black and Latino students were regularly admitted with grades and test scores that would have barred whites and Asians from consideration.

As such, it isn’t surprising that today Justice Anthony Kennedy has required—or, more precisely, challenged—the Fifth Circuit to “verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” His skepticism is part of a sea change in the national conversation on the classic racial-preference policies of the kind that led to bans on them at the University of California and elsewhere starting in the ’90s.

Since I started writing about the issue in 1998, good-thinking people have become much less ticklish in considering that admissions preferences be based on socioeconomics rather than skin color. The recession, followed by the Occupy movement, has highlighted inequality as a whole, discouraging the “racialization of poverty” that even admirers of affirmative action routinely decry. Perhaps the Obamas help make it clear, also, that in our times, black affluence and success are far from rare.

In our moment, then, an Abigail Fisher must be viewed differently than she once would have been. It’s easy to suppose that her case against the University of Texas for giving a race bonus to applicants under one segment of its admissions process is small at best, racist at worst. Surely she is unaware of the larger contours of race in America.

Yet the idea that racial preferences must continue until there is no racism in America is more fragile than typically supposed. In the America of 2013, rejecting students on the basis of their not happening to be brown is ever trickier to defend. Just as we are so often urged to try to put ourselves into the place of a black or Latino person and their experiences, it helps in this case to imagine being an Abigail Fisher.

Is Fisher really so callous in feeling that her hard work ought be “affirmed” just like that of black students? She may be quite aware that racism exists in America and yet be unable to process it as justifying something as concrete as a rejection letter addressed to her.

Few of us would argue that such thoughts render someone a moral degenerate—or even as grievously ignorant. Now, to be sure, less forgivable would be an affluent student unable to understand why they might give up their place to someone who grew up disadvantaged. But in 2013 being black or Latino cannot be equated with being disadvantaged the way it could 50 years ago. Gone are the days when a discussion of black people commonly implied that the black middle class was a kind of statistical static barely worth extended discussion.

What we can reasonably require an Abigail Fisher to understand is that the rules are bent based on socioeconomics.

There are people who understand the basic sense of this but have a hard time getting past a certain recoil at the prospect of actually requiring black and Latino students to submit dossiers equal to those of other students. It seems somehow improper, out of step with “acknowledging” racism.

However, race and racism are “acknowledged” almost obsessively in our culture—witness just this week the media coverage of this court decision, the Trayvon Martin trial, and Paula Deen’s firing. The question is whether said acknowledgment must include forever submitting brown kids to lower standards than others.

Whites assessing the issue, amid all the sonorous dialogue using words like “inclusion” and “legacy,” should do a thought experiment. How would you feel if your own children were submitted to lower standards by an institution? And how much better would it make you feel to be told that it was because your children are “diverse”?

Of course, many suppose that we need to rethink what we consider qualification for selective schools to be. What about “leadership skills” or Howard Gardner’s conception of multiple intelligences?

There is something to those things; the predictive power of the SAT has been rightly questioned. However, before we change the qualifications, first let’s show we can meet them, regardless of their flaws.

It will help no one, of any color, for qualifications to be changed because it appears that black and Latino kids aren’t bright enough to manage them. They are, and we need to make it so that they can prove it—upon which it bears mentioning that submitting them to permanently lowered standards isn’t exactly the best way to do it.

Get The Beast In Your Inbox!

Daily DigestStart and finish your day with the top stories from The Daily Beast.

Cheat SheetA speedy, smart summary of all the news you need to know (and nothing you don't).

You are now subscribed to the Daily Digest and Cheat Sheet. We will not share your email with anyone for any reason

Harlem Renaissance writer Zora Neale Hurston, whose love for her people and assiduous chronicling of Deep Southern black life immunize her from any claims of being self-hating or “conservative,” had some choice words on this:

“It seems to me that if I say a whole system must be upset for me to win, I am saying that I cannot sit in the game, and that safer rules must be made to give me a chance. I repudiate that. If others are in there, deal me a hand and let me see what I can make of it, even though I know some in there are dealing from the bottom and cheating like hell in other ways.”

That’s what I call Black Power, and I just don’t see it in admissions policies seeking to exempt black and Latino students from truly serious competition until racism doesn’t exist. To the extent the Supreme Court today has moved us closer to Zora Neale Hurston than tokenism under a new name, I am as happy today as Mary Sue Coleman was back in 2003.